Amai and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 745

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2008/1548

General Administrative Division

Re: Julie Amai
Applicant

And: Secretary, Department of Education, Employment and Workplace Relations
Respondent

CORRIGENDUM

TRIBUNAL:             Dr K S Levy RFD, Senior Member

DATE:                      18 September 2008

PLACE:                   Brisbane

The Tribunal directs that:

Paragraph 19 on page 9 of the Decision and Reasons for Decision dated 26 August 2008 is amended to read:

In the 2^nd last sentence:-

(1) Delete the word “minimise”; and

(2) In that sentence, after the opening words “While not wishing to”, insert the word “minimise”.

....................[Sgd]...............................................

Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 745

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1548

GENERAL ADMINISTRATIVE DIVISION		)
Re		JULIE AMAI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date26 August 2008

PlaceBrisbane

Decision The decision under review is affirmed.  

...................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – parenting payment – lump sum payment – compensation affected payment – lump sum preclusion period – meaning of special circumstances – not exceptional or unusual  – decision under review  

Social Security Act 1991 ss17(1), 1169, 1170, 1184, 1184K(1)

Haidar v Secretary, Department of Social Security [1998] FCA 994; (1998) 52 ALD 255

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Secretary, Department of Families and Community Services v Chamberlain [2002] FCA 67

Frelek and Secretary, Department of Families and Community Services [2005] AATA 742

REASONS FOR DECISION

26 August 2008 Dr K S Levy RFD, Senior Member           

INTRODUCTION

1.      The application in this matter by Mrs Julie Amai concerns parenting payments made to Mrs Amai by Centrelink for the period 22 August 2005 to 10 August 2006.  The total amount of payments for this period was $11,750.79.  A compensation claim for a lump sum payment of $100,968.10 on 20 October 2006 resulted in recovery of certain amounts including $11,750.79 previously paid as a parenting payment. 

2.      The Applicant requested review of the decision to recover this amount.  Her request was reviewed by an Authorised Review Officer on 17 December 2007 and the decision not to refund any of the compensation charge was affirmed.  She subsequently appealed to the Social Security Appeals Tribunal (SSAT) on 9 January 2008 and the original decision was again affirmed by that Tribunal on 25 February 2008.  Mrs Amai now appeals to this Tribunal.

ISSUE

3.The questions for the Tribunal are:

(i)Is the charge of $11,750.79 recoverable by the Respondent?

(ii)If the answer to question (i) is yes, are there special circumstances which would justify disregarding any or all of the compensation payment?

EVIDENCE

4.      There were a number of documentary exhibits admitted to the Tribunal.  The history shows that Mrs Amai was previously a night-filler at Coles and had an excellent work record.  In 2003 she noted some pain in her right shoulder.  Later that year in October 2003 she was diagnosed with a brain tumour and required surgery.  A number of other significant incidents occurred subsequently for her.  Briefly, these are:

(i)She returned to work in January 2004.

(ii)In March 2004, her granddaughter died aged 6 weeks.

(iii)In October 2004, she was diagnosed with an epithelial abnormality and cancer of the cervix.

(iv)In January 2006, she was advised by letter by Centrelink about the potential for repayment of amounts paid as parenting payments if she received compensation for her workplace injuries.

(v)Her solicitors at the time were also provided with similar advice.

(vi)On 20 October 2006 the compensation claim was settled as follows –

Settlement of workplace injury claim  $100,968.10

Less WorkCover claim   $    4,040.04

$  96,928.06
Less Centrelink debt   $  11,750.79
  $  85,177.27
Less Legal and other expenses (approximately)         $  34,177.27
Net proceeds (approximately)  $  51,000.00

The distribution of the net proceeds were –

Debt to sister-in-law   $  15,000.00
Balance (used to purchase house)   $  36,000.00
Total   $  51,000.00

(vii)In December 2007 (New Years Eve) the Applicant had a head on collision with another car.  She has flashbacks about this incident as her father also had a head on collision in 1968 and from which he suffered long term disability and subsequently died.

5.      Since these incidents, the Applicant has continued to work for much of the time.  She is in constant pain but has some medication to control it.  She has had numerous other family stresses involving difficulty with her eldest daughter and her husband leaving her for a period of time.  Her husband has now returned but the Applicant says it is not a normal living relationship.

6.      A medical report was provided by her General Practitioner saying that he was of the opinion that she suffered from a post traumatic stress disorder.  This report was undated but it can be inferred from its contents that it was provided five months after the head on collision.  It would therefore appear to have been authored about May 2008 and is therefore a relatively contemporary report.

7.Other evidence provided by the Applicant was as follows –

(i)The Applicant did not remember receiving the letter provided by Centrelink advising of the need to make repayment in the event of compensation claim being settled.

(ii)She admits that her solicitors may have mentioned the matter to her but she does not specifically recall.

(iii)Because of the brain tumour that she had, she stated that she now has some memory problems.

(iv)Due to the condition of both her shoulders, she cannot do jobs involving physical labour.

(v)The Applicant has had a permanent hearing loss in her right ear since a very young age and now wears two hearing aids.  This causes some difficulty for her undertaking office work. 

(vi)She has tried to continue work and to support her children, notwithstanding the difficulty she has experienced.  She presently works as a receptionist in a doctor’s surgery.

(vii)She and her husband both work and they live in the same house.  They also support their eldest daughter who has a small child.

SUBMISSIONS

8.      Ms Brazier, advocate for the Respondent submitted that the preclusion period was 22 August 2005 to 10 December 2006.  Mrs Amai received benefits for the period August 2005 to August 2006 and worked thereafter.  It was noted that the only period not covered by payments from Centrelink or any salary or wages was a period of three months from August 2006 to December 2006, but in that period the Applicant still received the family tax benefit.

CONSIDERATION

9.      I have applied the statutory and case law and taken account of the whole of the evidence, and in particular, Mrs Amai’s evidence which includes a written submission of her difficulty in expressing herself at times.  She provided a two and a half page outline of issues and difficulties which she regarded as significant. I have taken into account of all those submissions.

Findings of Fact

10.I make the following findings of fact in relation to this matter:

(i)The Applicant has suffered significant medical trauma, in particular surgery for a brain tumour in October 2003.

(ii)She was severely affected by the death of her granddaughter at six weeks of age shortly after March 2004.

(iii)In October 2004, she had cancer of the cervix and that was ultimately treated successfully.

(iv)She has worked almost continuously since January 2004.

(v)She was advised of the potential for repayment, by a letter from Centrelink dated January 2006.

(vi)Her then solicitors, KM Splatt & Associates were similarly advised by letter in January 2006.

(vii)The Applicant received a lump sum payment of $96,928.06 on 20 October 2006.  Following repayment of the Centrelink debt and other expenses, her net proceeds received were $51,000.

(viii)The Applicant had a head on collision in December 2007.

(ix)Mrs Amai continues to work but has ongoing pain, for which she has some medication.

the law

11.     The relevant statutory law is the Social Security Act 1991. Section 17(1) of that Act defines a “compensation affected payment” to include a parenting payment. It is noted that a family tax benefit is not included within that definition. Section 1169 of that Act provides that a compensation affected payment is not payable to a person for any part of a lump sum preclusion period. A “lump sum preclusion period” is defined in s 1170 of the Act and a formula is provided in ss 4 and 5 of the Act.

12. As an amount relevant to the lump sum preclusion period in this case was recovered by the Commonwealth at the time of settlement, other provisions in s 1184 are not relevant, with the exception of s 1184 K(1) which relevantly provides that the Secretary may treat the whole or part of a compensation payment as not having been made or not liable to be made if the Secretary is satisfied that there are “special circumstances”.

13.     The first issue to be decided by the Tribunal was conceded by the Applicant that the amount claimed and recovered by the Secretary is correct.  The only issue then to be determined by the Tribunal is whether there are “special circumstances” which might justify recognising the amount of $11,750.79 paid (and recovered), as not having been made.

14.     In determining that question, the Respondent submitted that the purpose of the legislation was to set a formula for recovery of personal injury settlements made by agreement or by consent order.  That amount is 50% of the lump sum compensation and will be deemed to be the amount in respect of economic loss.  Any matters occurring after the preclusion period will not be relevant in determining “special circumstances” unless those matters can be shown to be “in some way related to the event occurring during the preclusion period”[1].

[1] Haidar v Secretary, Department of Social Security [1998] FCA 994; (1998) 52 ALD 255

15.     Special circumstances must show something exceptional, unusual or special in the sense there must be some distinguishing features to set it apart from the usual or ordinary case[2].

[2] Groth v Secretary, Department of Social Security (1995) 40 ALD 541at 545 per Keifel J.

16.     In this case, I am of the view that the legislative intention indicates that “double-dipping” is to be avoided (Haidar’s case).  Here, the double-dipping constitutes receipt of public monies as a parenting payment when injured in the workplace and then receiving common law damages for the same concurrent period and as compensation for the same injury.  In any event, it is clear that regardless of the amount of economic loss or damages received, the statutory scheme overrides other considerations so that even where the amount of damages is less than the amount of the debt to be repaid to Centrelink, that circumstance would not be a “special circumstance”[3].

[3] Secretary, Department of Families and Community Services v Chamberlain [2002] FCA 67.

17.     The application of those legislative principles results in a conclusion that the Applicant’s circumstances are not special circumstances in term of the legislation.  All the authorities above support that view.  However, I have considered also the case Frelek and Secretary, Depart of Families and Community Services[4] where the Applicant in that case was regarded as being in “special circumstances” where a lump sum payment was used also for the purchase of a house and then did not have sufficient liquid funds to pay for maintenance of his wife and children.  In that case however, Frelek had received serious spinal injuries and was not only in constant pain but had severe mobility problems, was a young man and could not be expected to ever work again. 

[4] [2005] AATA 742.

18.     There are therefore some similarities between the present case and Frelek’s case.  Equally, there are a number of differences that are significant and which minimise any case for regarding the facts of the present case as pointing to “special circumstances” under s 1184K.  In particular, the Applicants in both of those cases had had extreme hardship.  Mrs Amai in particular, over the past six years or so, has had considerable misfortune.  She also has demonstrated a responsible attitude to work and family commitments and that must be acknowledged.  However, despite the fact that the money has been used for the purchase of a house and therefore might tend to reduce her reliance on Centrelink for the future, her financial circumstances would not be regarded as being as difficult as that in Frelek’s case.  Here, Mrs Amai continues to work; her husband is also employed; she is not precluded to receiving Centrelink benefits into the future, and the spinal injuries and long term mobility problems in Frelek’s case is not evident in the present case.  While Mrs Amai has a number of limitations about the type of work she might perform and has ongoing pain, this can be controlled by medication.  It is possible that her employability through to normal retirement age may not ultimately be achieved, but she would be entitled to social security benefits in the future if there was a recognised disability earlier than normal retirement age.

19.     In all of the circumstances, I find that, despite difficulty experienced by the Applicant, she herself admitted in evidence that the difficulty in paying off a mortgage was no different to many others in the community.  She is therefore not in an unusual or exceptional position.  She has a number of difficulties, as do numerous other people receiving social security benefits.  But those difficulties are not to a degree such as that in Frelek which justifies special circumstances.  The purpose of the legislation is clear and it is that “double-dipping” should not be permitted with the use of public monies.  While not wishing to the responsibility accepted or minimise the difficulty and the impact these circumstances have had on Mrs Amai, she has had a degree of skill and competence that has enabled her to continue to work.  In the circumstances, I find that the facts do not reveal “special circumstances” in terms of the legislative provision of the Social Security Act 1991.

20.     The decision must therefore be affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: .....................[Sgd]...........................................................
              Elizabeth Young, Research Associate

Date/s of Hearing  14 August 2008
Date of Decision  26 August 2008
The Applicant was self represented
For the Respondent                  Ms M Brazier, departmental advocate